Communication by means other than oral speech or the printed word, usually through objects or actions that have some special significance, such as picketing, burning flags or draft cards, marching, and wearing protest armbands.
The Supreme Court gradually developed a theory of how the First Amendment
The Court’s first symbolic speech case was Stromberg v. California
The Court’s second important symbolic speech case also involved flags. In West Virginia State Board of Education v. Barnette Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.
Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.
In other rulings, the Court extended the mantle of First Amendment protection to many other forms of symbolic speech, including the right to peacefully picket in labor disputes in Thornhill v. Alabama
Court justices not only viewed such nonverbal expression as still essentially communicative in nature but also pointed out that symbolic speech might be the only way for the relatively powerless to gain public attention. In Milkwagon Drivers Union v. Meadowmoor Dairies
Furthermore, the Court suggested that highly unorthodox and symbolic speech might especially deserve protection because it could communicate in an emotive way that ordinary speech and writing could not. Therefore, in Cohen v. California
The Court increasingly made clear that, just as ordinary written and oral political expression can virtually never be criminalized based on its content, neither can symbolic political speech be restricted on such grounds. In Schacht v. United States
However, in other symbolic speech cases, the Court declared that symbolically expressive conduct is not always as protected by the First Amendment as is pure speech. Therefore, in Cox v. Louisiana, the Court rejected the idea that the First Amendment and other constitutional provisions afforded “the same kind of freedom to those who would communicate ideas by conduct such as patrolling, marching and picketing on streets and highways” as was provided “to those who communicate ideas by pure speech.”
In United States v. O’Brien
In O’Brien, the Court for the first time attempted to establish guidelines for determining when conduct could be constitutionally regulated if it was combined with an expressive element. In short, the Court held that restrictions on mixed conductexpression could be upheld if the regulation was within the government’s constitutional power and furthered an important or substantial governmental interest that did not involve the suppression of free expression and “if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” As applied twenty years later to flag desecration, one of the most contentious symbolic speech issues to ever arise, the O’Brien guidelines were held to require the protection of protest flag burning on the grounds that the reason behind attempts to outlaw such expression involved the suppression of free expression.
The Court’s ruling in Schenck v. Pro-Choice Network of Western New York
Farish, Leah. “Tinker v. Des Moines”: Student Protest. Springfield, N.J.: Enslow, 1997. Goldstein, Robert Justin. Flag Burning and Free Speech: The Case of “Texas v. Johnson.” Lawrence: University Press of Kansas, 2000. Goldstein, Robert Justin. Saving “Old Glory”: The History of the American Flag Desecration Controversy. Boulder, Colo.: Westview Press, 1995. Johnson, John. The Struggle for Student Rights: “Tinker v. Des Moines” and the 1960’s. Lawrence: University Press of Kansas, 1967. Tedford, Thomas. Freedom of Speech in the United States. State College, Pa.: Strata Publishing, 1997. Welch, Michael. Flag Burning: Moral Panic and the Criminalization of Protest. New York: Aldine de Gruyter, 2000.
Cohen v. California
O’Brien, United States v.
Speech and press, freedom of
Stromberg v. California
Texas v. Johnson
Thornhill v. Alabama
Time, place, and manner regulations
Tinker v. Des Moines Independent Community School District
West Virginia State Board of Education v. Barnette